find the latest legal job
Senior Associate - Litigation & Dispute Resolution
Category: Litigation and Dispute Resolution | Location: Melbourne CBD & Inner Suburbs Melbourne VIC
· Come work for a firm ranked in Lawyers Weekly Top 25 Attraction Firms
View details
Associate - Workplace Relations & Safety
Category: Industrial Relations and Employment Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Employer of choice · Strong team culture
View details
Freelance Lawyers
Category: Banking and Finance Law | Location: All Perth WA
· Freelance opportunities through Vario from Pinsent Masons
View details
Freelance Lawyers
Category: Other | Location: All Adelaide SA
· • Qualified lawyer with a strong academic background
View details
Freelance Lawyers
Category: Other | Location: All Melbourne VIC
· • Qualified lawyer with a strong academic background
View details
Metcash win a victory for Freehills

Metcash win a victory for Freehills

Freehills has successfully advised Metcash in a Federal Court judgment that gives the company the green light to acquire Franklins.The Australian Competition and Consumer Commission (ACCC)…

Freehills has successfully advised Metcash in a Federal Court judgment that gives the company the green light to acquire Franklins.

The Australian Competition and Consumer Commission (ACCC) initiated the legal action against the proposed $215 million takeover after it issued an injunction in March on the grounds that such a deal would be uncompetitive.

In a judgment handed down in Sydney yesterday (25 August) by Federal Court Justice Arthur Emmett, the ACCC argument that this deal would lessen competition was comprehensively rejected.

Justice Emmett found that rather than reducing competition, such a deal would in fact enhance competition as it would give independent retailers greater ability to compete with major supermarket chains such as Woolworths and Coles.

Metcash is Australia's largest grocery wholesaler, with its clients including IGA supermarkets.

In arguing that Metcash's proposal to take over the 80 Franklins stores in New South Wales would lessen competition, the ACCC failed to include Woolworths or Coles as competitors. The regulator mounted an argument that concentrated on the wholesale, rather than retail, supply of packaged groceries.

Justice Emmett found that this ignored commercial realities, and agreed with the argument mounted by Metcash that in acquiring Franklins, the company would not be able to price above a competitive level on the wholesale side, as it would substantially reduce the ability of its retailers to compete with the major retail grocery franchises.

Justice Emmett also refuted the suggestion by the ACCC that a credible and reputable alternative buyer to Metcash would come forward to purchase Franklins.

Freehills commercial litigation partner Grant Marjoribanks and competition partner Michael Gray led the firm's team. Barristers Justin Gleeson SC, Peter Brereton SC and Declan Roche were also engaged by Metcash.

The ACCC used barristers Norman O'Bryan SC and John Halley SC, and were instructed by Matthew Blunn, national group leader, dispute resolution, with the Australian Government Solicitor.

Pick N Pay, the South African company that owns Franklins, engaged Blake Dawson partner and competition and consumer protection team head Peter Armitage. Barristers John Griffiths SC and Cameron Moore also advised Pick N Pay.

Mallesons Stephen Jaques competition law and regulatory partner Sharon Henrick poured cold water on the idea that the Federal Court ruling would act as a spur for the Australian M&A market when she spoke to Lawyers Weekly about the implications of yesterday's ruling.

"Some people seem to think that people have been holding back their deals and waiting for the decision," she said. "In reality, these kinds of deals are rare, and they are rare for a reason ... I don't think there will be a rush of deals through the ACCC as a result of this decision or people asking the ACCC to rethink previous decisions."

While yesterday's judgment was a defeat for the ACCC in the fist instance, Henrick defended its right to bring such action to the Federal Court.

"People should be slow to criticise the ACCC for bringing cases that it loses," she said. "I think a very important part of the Commission's remit is to test what the boundaries are, and that means it will occasionally lose cases."

The ACCC said it was "disappointed" by the decision. It is considering its options for appeal.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Metcash win a victory for Freehills
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Consultation
06:04
Lawyers slam rushed consultation for SA repeat offenders bill
The Law Society of South Australia has expressed concern for a proposal to roll out new laws amendin...
IBA
06:03
The pursuit of happiness in the law
A panel of legal experts have explored how to define success in the legal profession, and how lawyer...
Queensland University of Technology, ruby milestone
06:00
Queensland law school reaches ruby milestone
Celebrating 40 years since establishing a law course in 1977, the Queensland University of Technolog...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...